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An Overview of Enduring Powers of Attorney

An Enduring Power of Attorney (EPA) is a legal document in which a donor gives a trusted person or persons (the attorneys) the right to make decisions on the donor’s behalf. The authority given by an EPA is limited to decisions about the donor’s property and financial affairs.

It has not been possible to make a new EPA since 1 October 2007. The system was changed by the Mental Capacity Act 2005, and since that date it is only Lasting Power of Attorneys (LPAs) that can be made.

However, existing EPAs that were signed by both the person making the Power (“the donor”) and the attorney (s), and which were made correctly before 1 October 2007, continue to be valid. If you have a valid EPA, you can still act on the donor’s behalf to manage their finances.

When can I act under an EPA?

If the donor has mental capacity, but is physically incapable, then you can immediately act under the EPA and manage the donor’s finances with the donor’s direction. You will need to take a certified copy of the EPA, along with your identification, to the banks and other organisations where the donor’s funds are held.

If the donor is becoming or is mentally incapable of handling their own affairs then, if you’ve been appointed as an attorney under an EPA, you must register the EPA with the Office of the Public Guardian (OPG) in order to be able to act under it.

How do I register an EPA in England and Wales?

There is a two-step process for registration.

  1. Notification →Firstly, you must notify the donor and at least three of the donor’s relatives that you intend to register the EPA using the Form EP1PG.

Notifying the donor:

  • You are required to personally notify the donor and explain what registering the EPA means.
  • The notice can be posted if you are unable to visit the donor.
  • It is not necessary for the donor to understand the notice, for example in the case of a severely incapacitated donor the service and explanation of the notice can be relatively simple.

Notifying the relatives:

  • You must also notify at least three of the donor’s relatives. The categories (in order of priority) include the donor’s: spouse or civil partner, children (including adopted but not step children), parents, siblings (including half-siblings), child’s widow or widower or surviving civil partner, grandchildren, nieces and nephews, aunts and uncles, and first cousins.
  • If the donor has no family member in a category then you should move on to the next category. If you fall into the category of relatives as an attorney than you count as one of the three. Relatives who are mentally incapable or under 18 do not count as one of the three relatives to be notified.  
  • Once you have reached the appropriate category then every person in the category must be notified (even if it is more than the required three relatives).
  • You should try to post the notice. However, if this is not possible then the relative can give you permission to accept the notice by email, and you must receive a reply from them to confirm they have received it.

The purpose of the notice is to give the donor or/and their relatives the opportunity to come forward if they object to the registration of the EPA. The five valid grounds of objection are set out in Form EP1PG. Examples of objections include that the donor is not yet, or not yet becoming, mentally incapable, or it may be that the attorney is unsuitable. Any objections will need to be resolved before the EPA can be registered.

  • Registering the EPA → Secondly, you must apply directly to the Office of the Public Guardian (OPG) to register the EPA.

You must complete the Application for Registration form (EP2PG) and submit this to the OPG along with the registration fee of £82.

If there is more than one attorney listed in the EPA, it is important to check whether the attorneys have been appointed to act ‘jointly’, or ‘jointly and severally’.

  • If you have been appointed to act ‘jointly’ than you will need to apply together with your co-attorneys to register the EPA.
  • If you have been appointed to act ‘jointly and severally’ than either you or any of your co-attorneys can register the EPA, but you will need to notify each other of the application.

It can be a difficult decision to register an EPA, especially if the donor has sufficient faculties to comprehend some of the implications. However, if the attorney sees or is informed that the donor is demonstrating early stages of mental incapacity then it is important to register. You will have limited powers to maintain the donor and prevent any loss to their money and property until the EPA is registered. The registration process can take a long time and an early application is essential to avoid a complaint of negligence, particularly in the case of a complex asset portfolio.

Please contact a member of our highly experienced Private client department if you would like advice on whether an EPA needs to be registered or for more detailed information on the registration process.

Written by Anouschka Fenley-Paralegal

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